S249 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 174

FEDERAL COURT OF AUSTRALIA

S249 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 174

MIGRATION – No point of principle

S249 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 229 OF 2005

MOORE J
16 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 229 OF 2005

BETWEEN:	S249 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	16 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time to file and serve a notice of appeal be dismissed.

2. The applicant pay the respondent's costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 229 OF 2005

BETWEEN:	S249 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	16 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex Tempore – Revised)

1. This is an application for an extension of time to file a notice of appeal against a judgment of a Federal Magistrate of 24 January 2005.  In that judgment the Federal Magistrate dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 9 February 2000.

2. The applicant entered Australia on 1 October 1997.  The solicitor appearing for the Minister informed the Court today that there has been other litigation in this Court concerning the applicant though beyond the brief explanation given the precise details are presently unknown.  The question that immediately arises is whether an order should be made extending time.  If there remains on foot proceedings in this Court there will be a question concerning whether the applicant should be removed from Australia which is presently scheduled to occur at 10 pm this evening.

3. I have read the decision of the Tribunal and the reasons for judgment of the Federal Magistrate.  The appeal should have been filed a day before the application for an extension of time was made.  The fact that the applicant was in substance a day late in lodging documents is of very limited relevance in the sense that the application for an extension of time really turns on the question of whether the appeal has any prospects of success. 

4. The appellant would ultimately have to demonstrate error on the part of the Federal Magistrate, which in turn might involve establishing error on the part of the Tribunal that the Federal Magistrate erroneously failed to discern or assess.  However, as the Federal Magistrate has pointed out in his reasons for judgment, the decision of the Tribunal turned essentially on its assessment of the credibility of the applicant. The Tribunal ultimately concluded the account given by the applicant of his experiences in Bangladesh could not be accepted.  In those circumstances the Federal Magistrate, in my view, correctly concluded that no case had been made out for relief in relation to the Tribunal's decision. 

5. Nothing has been said by the applicant today that would suggest the conclusion of the Federal Magistrate was in some way infected by error.  Accordingly, the applicant has not made out a case for the extension of time as I consider the appeal would have no prospects of success.

6. I propose to dismiss the application for an extension of time.  I will make no order in relation to the removal of the applicant scheduled for later this evening.  I dismiss the application for an extension of time.  I order that the applicant pay the Minister's costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            7 March 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 February 2005
Date of Judgment:	16 February 2005